[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]

It is old news that Europe’s multi-layered constitutional governance regime has long had a strained relationship with constitutionalism.[1] The EU’s half-hearted response to illiberal constitutional transformations in Hungary and Poland that violate the founding values of the Union is a more recent sign of serious trouble, as it signals to willing national political actors that previously unthinkable departures from the rule of law have become acceptable means of European governance.[2] The sheer technicality of legal responses (including in the judgments of the Court of Justice of the European Union (CJEU)) exacerbates this sense of demise.[3] Ironically, in this era the negotiated departure of the United Kingdom from the Union is proof that European bureaucracy functions fine.

It is against this background that in March 2018 the Irish High Court presented the CJEU with an unexpected opportunity to bridge the gap between founding principles and technical rules on account of handling an extradition request under a European Arrest Warrant (EAW).[4] The CJEU’s pending response to the Irish judge may well turn into an accidental constitutional moment for Europe in the shadow of Brexit and the rise of illiberal political rulers.

The EAW is a tool of judicial cooperation, a judicial surrender procedure, to assist prosecution and detention of a particular person across member states for certain crimes.[5] National Courts may refuse to execute an EAW on narrow grounds.[6] Most recently the EAW made headlines when the Spanish judiciary used it to request the extradition of Catalan leaders residing in exile in several European countries.[7] Spectacular mistakes in confused identities, delays in a foreign country’s justice system and detention conditions make the EAW into a handy illustration of what is wrong with EU member ship, and as such the EAW is a low-hanging fruit for Europhobes. As such, it is an unlikely vehicle of European integration par excellence.

The Irish European Arrest Warrant Act 2003 prohibits surrender if it violates human rights under the European Convention or violates the Irish Constitution (section 37). The Irish judge turned to the CJEU with a request for a preliminary ruling. She was reluctant to return a Polish national facing drug charges to his native Poland, as recent reforms to the judiciary had profoundly compromised fair trial rights and judicial independence in Poland, to the point that “Poland shows a significant disregard for what is recognized in the TEU as an important common value of the EU and its Member States” (para 129). As such, the Irish court’s request speaks to the very core of the European constitutional venture: to its founding values expressed in Article 2 TEU and ultimately, to mutual trust between the member states in each other’s constitutional systems.

In the spring of 2016, in the Aranyosiand Căldăraru case, the Grand Chamber of the CJEU was presented with a question on the threshold of mutual trust, when a German court had reservations about returning nationals to member states where prison conditions were found by the European Court of Human Rights to violate the prohibition of torture as a result of inadequate detention facilities and overcrowding.[8] The CJEU made it the task of national courts to determine whether “objective, reliable, specific and properly updated evidence” demonstrates “systemic or generalized” deficiencies of the conditions of detention that expose the individual to “a real risk of inhuman or degrading treatment” in the fellow member state (para. 104).

The Irish judge appeared to believe that as far as fair trial rights and the independence of a national judiciary is concerned, the legal assessment may be based soundly on the European Commission’s Reasoned Proposal[9] detailing the systemic deficiencies that compromise the independence of the Polish judiciary. Importantly, for the Irish judge it is secondary whether the European Council follows up on the Commission’s Reasoned Proposal in the political decision making procedure under Article 7 TEU (see paras. 115-116).

It remains to be seen whether the CJEU is willing to go beyond the requirements of the test established in Aranyosiand Căldăraru. Some may suggest that if the CJEU required the national court to see if prison conditions in another member state present a real risk of violating the absolute prohibition of inhuman or degrading treatment, then a potential violation of fair trial rights should be assessed under a more permissive standard. However, the Grand Chamber of the CJEU has recently found the principle of effective judicial protection to be a general principle of EU law.[10] As such, the CJEU has positioned itself perfectly to define the notion of effective judicial protection, and its bedrock, judicial independence, in light of the current challenges to these common values, with special attention to the weaknesses of the rule of law monitoring process, as evidenced by the political conundrum following the Commission’s Reasoned Proposal.[11]

The Irish court has thus presented the CJEU with the perfect occasion to use the EAW as a tool of European integration. Building on carefully crafted legal reasons as well as recognizing the constitutional significance of mutual trust between the member states in each others’ commitment to the founding values of the Union, the CJEU may demonstrate how the technical instruments of EU law are connected with the founding values and principles of the Union. To EU lawyers educated in the ethos of the EU being an econonic union, based on the four freedoms, this may sound like a leap of faith. However, as Dieter Grimm reminds, the future of the European constitutional experiment depends upon going beyond clandestine pragmatism and reinforcing first principles.[12] The CJEU may once again be the force shaping Europe’s much needed constitutional moment. And we have Justice Aileen Donnelly to thank for posing the question that may take us there.

[3] C-286/12, Hungary v. Commission where the forced early mass retirement of Hungarian judges was not found to amount to age discrimination in violation of European equal treatment rules (Directive 2000/78/EC) – and not a violation of judicial independence as a founding principle of the Union.

2 Responses

Dear Colleague, I found your post very interesting and I also understand that the EAW can become in a constitutional instrument (even that the use of the term “constitution” can be defined as undemocratic after the failure of the constitutional project in Europe). I wonder if your definition of constitutional moment follows Bruce Ackerman´s conceptualisation and if it is so, how is the European Demos involved in that moment. Thanks again for this stimulating post.

As a side-note: to the extent courts in similar situations or European institutions are expected to rely on expert insight from NGOs on local conditions, restrictions on civil society organizations in the name of transparency obtain an important European constitutional dimension.

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